1837 Treaty

Mille Lacs Chippewa et al v the State of Minnesota et al

Treaties between representatives of the United States and representatives of American-Indian tribes have a geographical and historical expression. Designed to extinguish aboriginal title, they are a source of continuing controversy, perhaps inevitably so, because there is no equivalent in Anglo-American law to such title. Virtually all treaties have been the subject of litigation and virtually all have been the subject of scholarly debate. Some of the litigation and debate focuses on the nature of the implied sovereignty in a particular treaty, some on the nature of the rights ceded in a particular treaty or the corollary, the nature of the rights that were not ceded, and some on the adequacy of compensation for the rights that were ceded.

In 1990, the Mille Lacs Band of Chippewa Indians filed suit against the state of Minnesota in federal district court. The Band asserted that an 1837 treaty with the U.S. government gave them a continued right to hunt, fish, and gather free of state regulation on land ceded in the treaty. In an attempt to avoid a lengthy court battle, the Minnesota Department of Natural Resources (DNR) proposed a settlement that would have required the band to withdraw their lawsuit, limit the Lake Mille Lacs walleye harvest to 24,000 pounds per year, and adhere to a band conservation code. In return, the state would give the band $8.6 million, 7,500 acres of land, and exclusive fishing rights on 4.5% of Lake Mille Lacs. The agreement also allowed traditional spear fishing and netting practices.

During the 1993 session the Minnesota Legislature narrowly defeated the proposed settlement worked out by the Band and the DNR. Legislators opposed to the settlement argued that the use of gill nets would decimate the walleye population and harm tourism. Treaty proponents argued that the use of gill nets and spears were important components of Indian culture and religion and that their use would be limited. The proposed agreement was discussed at great length by the 1993 Legislature (SF1619/HF575). The bill was not passed by the House. Legislative history materials are available at the Minnesota Legislative Reference Library. As a consequence the band continued the law suit.

Federal District Court Phase I

On August 24, 1994, U.S. District Court Judge Diana Murphy ruled that the Mille Lacs Band did, indeed, continue to possess the hunting, fishing, and gathering rights they were granted in the 1837 treaty. (Mille Lacs Band of Chippewa Indians et al. v. State of MN et al., 861 F. Supp. 784)

The State, Counties and Landowners immediately appealed judge Murphy's order. On March 1, 1995 the Eighth Circuit dismissed the appeal (48 F.3d 373)

Federal District Court Phase II

A second phase of the trial was ordered to determine the band's fish and game allocation and the extent of any state regulation. Phase II concluded on January 29, 1997 when District Court Judge Michael Davis ruled, in a summary judgment, that the band's fishing and hunting activities in the twelve-county region were to be regulated by the band's Conservation Code, rather than by the state's fish and game rules. (Mille Lacs Band of Chippewa Indians v. Minnesota, 952 F. Supp. 1362)

Eighth Circuit Court of Appeals

The state of Minnesota filed an appeal with the 8th U.S. Circuit Court of Appeals in March, 1997. On August 26, 1997, a three-judge panel of the 8th U.S. Circuit Court of Appeals circuit court upheld the lower court decisions. (Mille Lacs Band of Chippewa Indians v. Minnesota, 124 F.3d 904) In November 1997, the 8th U.S. Circuit Court of Appeals denied a request to reconsider the ruling of the three-judge panel.

Supreme Court

The State and landowners appealed to the United States Supreme Court. Although the United States opposed the Court hearing the appeal, on June 8, 1998, the Supreme Court agreed to hear an appeal (524 U.S. 915)

"How Firm are Indian Treaty Rights Guaranteed to Continue "During the Pleasure of the President"? Resolving Minnesota's Dispute with the Chippewa Indians over the Bands; Hunting and Fishing Rights." (Preview of the United States Supreme Court Cases 149-155 1998)


  • Filed Briefs Before presenting oral arguments, counsel for both sides submitted a legal brief summarizing the facts of the case, the legal issues to be decided, the law the Court ought to apply, and the decision the Court should reach. In addition to the briefs filed by petitioner's - the state, counties and landowners - a number of other parties filed amicus curiae briefs in support . In addition to the briefs files by the respondents - the Mille Lacs Band, the Wisconsin Chippewa Bands, and the United States - a number of other parties filed amicus curiae briefs in support. Since these materials may be difficult to find without access to a proprietary database, they are reproduced here.

  • Oral argument - on December 2. 1998, the U.S. Supreme Court heard arguments from the state, concerned landowners, the Band, and the federal government

  • Opinion - on March 24, 1999, the U.S. Supreme Court upheld the lower court's rulings. In a 5-4 vote the Court said that the Mille Lacs Band of Chippewa retained the hunting and fishing rights guaranteed to them under the 1837 treaty. There were two written dissents from members of the minority. This opinion has been cited in some 100 decisions, and 85 briefs in various federal and state jurisdictions, and 230 periodical articles

Subsequently, in December 1999 U.S. District Court Judge Michael Davis ordered the state of Minnesota to pay the legal expenses of the Mille Lacs Band of Chippewa and six other bands. They were awarded a total of $3.95 million.

Newspaper Articles

  • Anderson, Dennis. "Mille Lacs Conflict." Three-part series, St. Paul Pioneer Press , April 4, 1993 - April 6, 1993

  • Price, David. "House Amends, Twice Rejects Revised Settlement." Session Weekly, May 7, 1993, p. 3-4

  • "Special Focus: 1837 Treaty Case." Masinaigan, Spring 1997, pp. 1-13

  • Oakes, Larry. "Minnesota Case Holds High Stakes for Indian Treaty Law." Star Tribune, Nov. 29, 1998, p. 1A

  • Meryhew, Richard et al. "Tribal Treaty Rights Upheld." Star Tribune, March 25, 1999, p. A1. A timeline of the treaty case is provided

  • LaDuke, T. "1837 Treaty Rights upheld in US Supreme Court." De Bah Ji Mon, Winter 1999, p. 1, 15

  • Anderson, Dennis. "Mille Lacs Monitored Closely: DNR Making Certain Anglers Don't Exceed Walleye Limit." Star Tribune, June 30, 2000, p. C7

  • Drieslein, Rob. "DNR, Bands Set Quota for Mille Lacs Walleye." Outdoor News, Jan. 28, 2000, p. 1, 19

  • Drieslein, Rob. "Input Group Chooses 2000 Mille Lacs Reg." Outdoor News, Feb. 4, 2000, p. 1, 23

Journal Articles and Books (links may be to proprietary databases e.g. HeinOnline)

Other Publications